Randalls and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by the Applicant against the decision of the Minister for Immigration and Border Protection to refuse his application for an Employer Nomination (Permanent) (Class EN) visa. The refusal was based on the Applicant failing to pass the character test due to having a substantial criminal record. The Tribunal was required to consider whether to exercise its discretion to refuse the visa application.

The central legal issue before the Tribunal was whether, in light of the Applicant's criminal convictions in Ireland and Australia, it should exercise its discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse the visa application. This required the Tribunal to weigh various considerations, including the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community, as outlined in Direction 65.

The Tribunal reasoned that while the Applicant had a number of convictions, including two for assault in 2011 which were considered violent crimes, and several driving offences in both Ireland and Australia, these did not constitute a pattern of violent offending. The Tribunal noted that the Applicant had not committed any offences for over three and a half years, which was the longest period of compliance since his first offence in 2002. The Tribunal found that the considerations weighing in favour of not exercising the discretion to refuse the visa outweighed those that weighed in favour of refusal.

Consequently, the Tribunal set aside the decision to refuse the Applicant's visa application and substituted a decision not to exercise the discretion to refuse the application.